Governing Law:
The parties expressly agree that all terms and provisions hereof shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and wholly performed, and to transactions wholly consummated, within that State.
Confidentiality:
Upon execution of this Agreement and as a condition of Client engaging Get Visible to perform the services set forth herein, Get Visible agrees to enter into a “Mutual Nondisclosure Agreement” with Client that shall govern the disclosure and transfer of information made between the parties hereto for purposes of Get Visible’s performance of said services. Unless expressly set forth herein, nothing contained in this Agreement shall alter or amend the terms and conditions set forth in the Mutual Nondisclosure Agreement.
Warranty and Limitation of Liability:
Get Visible makes no warranties, expressed or implied regarding the Services, including, but not limited to, any implied warranty of merchantability and fitness for a particular purpose. In no event shall Get Visible be responsible for any loss of profits, loss of use, business interruption, loss of data, cost of cover, indirect, special, incidental or consequential damages of any kind in connection with or arising out of this Agreement, including without limitation, in connection with or arising out of the furnishing, or failure to furnish, performance or use of the Services, even if Get Visible has been advised of the possibility of such damages. The total aggregate liability of Get Visible for all claims under or in connection with this Agreement shall be limited to the Fees received by Get Visible under this Agreement. The above limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy. The above limitations of liability are essential terms and conditions of this Agreement and reflect the parties’ agreement on the sharing of the risks under this Agreement.
Miscellaneous Provisions:
In no event shall Get Visible be in default of its obligations under this Agreement or incur any liability to Client because of failure to perform or delay in performance of services to be provided by Get Visible under this agreement where such failure or delay is caused by any event beyond the control of Get Visible, including, but not limited to, any of the following events; acts of God, acts of terrorism or war, legal acts of public authorities, strikes, picketing, riots or other civil disturbances, failure of communication, or power supply or mechanical difficulties with the equipment which could not have been reasonably foreseen or which should have been reasonably prevented.
No action to enforce any claim arising out of or in connection with the services which are the subject matter of this Agreement shall be brought by Client against Get Visible more than one year after the cause of action has occurred. Client acknowledges and agrees that, in the unlikely event of damages arising out of and directly resulting from Get Visible’s involvement in the aforementioned Client project, Get Visible is under no circumstances liable for repayment of damages beyond the professional services fees paid by Client specifically related to such damages.
In the event legal action is necessary to enforce the payment terms of this Agreement, Get Visble shall be entitled to collect from the Client any judgment or settlement sums due plus reasonable attorneys fees, court costs and other expenses incurred by Get Visible for such collection action and, in addition, the reasonable value of any Get Visible employee’s time and expenses spent for such collection action, computed according to the prevailing fee schedule and expense policies.
Get Visible makes no warranties, whether written, oral or implied, including any warranty of merchantability or warranty of fitness for a particular purpose. Any notice or other communication under this Agreement shall sent to the parties at their respective addresses set forth above (or at such other address as a party may specify by notice made pursuant to the terms hereof). Notices shall be considered given and received on the date of actual delivery if delivered personally or by overnight courier, or three days from the date of postmark if by certified first class mail (return receipt requested).
Entire Agreement:
This Agreement (including all of the rights and obligations set forth herein) is personal as to Get Visible and Get Visible shall not assign, transfer or otherwise convey, in whole or in part, any of the obligations set forth herein. This Agreement expresses the entire understanding of the parties and supersedes all contemporaneous and prior agreements and undertakings of the parties with respect to the subject matter hereof. This Agreement may only be amended or altered by another written agreement executed by both parties.
Section [X]. Dispute Resolution
[X.1] Application of This Section
This Section governs any dispute, claim, or controversy arising under or relating to this Agreement, the Service, or any related communications or interactions between you and Company (each, a “Dispute”). This Section applies regardless of whether the Dispute sounds in contract, tort, statute, or any other legal theory. As used in this Section, “Claimant” means the party asserting a Dispute, and “Respondent” means the party against whom a Dispute is asserted.
[X.2] Pre-Dispute Notice Requirements
Before initiating any formal dispute resolution process under this Section, Claimant shall send Respondent a detailed written notice of the Dispute by [specified delivery method, e.g., email to [email protected] with delivery confirmation, or certified mail to specified address]. The notice shall include all of the following:
(a) Claimant’s full legal name and current postal address;
(b) all email addresses Claimant has used in connection with the Service;
(c) the specific date or dates on which Claimant accessed the Service that form the basis of the Dispute;
(d) the specific URL or URLs accessed;
(e) the approximate timestamps of the access;
(f) the device type, operating system, and browser used;
(g) the IP address or addresses used to access the Service, if known to Claimant;
(h) a factual basis for Claimant’s standing to bring the Dispute;
(i) a specific description of the conduct alleged and the harm alleged;
(j) the legal theory or theories on which the Dispute is based;
(k) the nature of Claimant’s fee arrangement with counsel, if any, including whether the representation is on a contingency, fee-sharing, referral, or hourly basis, the rate or percentage applicable, and the identity of any third party providing funding or financing in connection with the Dispute; and
(l) a list of all claims, demands, formal complaints, or arbitration proceedings filed by Claimant within the 24 months preceding the notice that assert substantively similar legal theories or arise from substantively similar conduct, including the names of respondents and the disposition of each.
A notice that omits any of the foregoing is procedurally deficient. The dispute resolution timelines under this Section shall not commence until a compliant notice is received. The disclosures required by subparts (k) and (l) are intended to enable good-faith assessment of the Dispute and to enable any arbitrator to screen for fraud, abuse, or improper purpose.
[X.3] Informal Resolution Period
Within 60 days of Respondent’s receipt of a compliant notice under Section [X.2], the parties shall engage in informal resolution discussions. Such discussions shall include not fewer than two principal-level meetings, each attended by a principal of Claimant and a principal of Respondent. The parties shall coordinate scheduling in good faith, with Respondent making available a reasonable slate of dates within the 60-day period and Claimant selecting available dates from that slate. Meetings may be conducted by video conference. Claimant may be accompanied by counsel or an authorized representative. Failure of Claimant to participate in good faith in the required meetings is a material procedural defect, and no arbitration may be commenced unless and until the requirement is satisfied or expressly waived in writing by Respondent.
[X.4] Binding Arbitration
Any Dispute that is not resolved through the process described in Sections [X.2] and [X.3] shall be resolved exclusively by binding arbitration administered by [American Arbitration Association (“AAA”)] under [its then-current Consumer Arbitration Rules]. Filings with any other arbitration provider shall be deemed procedurally deficient and shall not commence the arbitration. The arbitration shall be conducted by a single arbitrator. Venue for any in-person component of the arbitration shall be selected by Respondent, provided that the venue is reasonably convenient to Claimant; video proceedings shall be permitted at the election of either party.
[X.5] Pre-Merits Threshold Review for Good Faith
As a threshold matter and prior to merits adjudication, the arbitrator is authorized to consider, on the arbitrator’s own motion or on motion of a party, whether the Dispute was brought in good faith or bears indicia of fraud, abuse, or improper purpose. In conducting such review, the arbitrator may consider, without limitation, the disclosures provided pursuant to Section [X.2], the specificity and accuracy of the notice provided pursuant to Section [X.2], the conduct of the parties during the informal resolution process required by Section [X.3], the existence of substantively similar claims previously filed by Claimant or Claimant’s counsel, and any other information relevant to the good faith of the Dispute. If the arbitrator finds, by a preponderance of the evidence, that the Dispute was brought in bad faith or for improper purpose, the arbitrator may dismiss the Dispute and may award reasonable fees and costs to Respondent, in each case to the maximum extent permitted by applicable law and the rules of the arbitration provider. This Section is intended to enable fraud screening and shall not be construed to limit Claimant’s ability to assert a good-faith Dispute on the merits.
[X.6] Costs and Fees
Each party shall bear its own attorneys’ fees and costs except as otherwise provided in this Agreement or required by applicable law. To the maximum extent permitted by applicable law and the rules of the arbitration provider, Claimant shall be responsible for the costs and fees associated with the arbitration; in any event, the allocation of arbitration fees shall comply with the consumer-protection floors imposed by the arbitration provider’s consumer rules.
[X.7] Class-Action Waiver
Each party may bring claims against the other only in such party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated, or representative action. The arbitrator may not consolidate more than one party’s claims and may not preside over any form of representative or class proceeding. If any portion of this class-action waiver is found to be unenforceable as to a particular Dispute, that Dispute shall proceed in a court of competent jurisdiction (subject to all other terms of this Agreement, including without limitation Section [X.10]), and the arbitration agreement set forth in Sections [X.4] through [X.6] and [X.8] through [X.9] shall be null and void as to that Dispute. The class-action waiver in this Section [X.7] is non-severable from the arbitration agreement; severance of the class-action waiver from the arbitration agreement is not permitted.
[X.8] Carve-Outs from Arbitration
Notwithstanding the foregoing, either party may bring an action in a court of competent jurisdiction in [chosen jurisdiction] for: (a) injunctive or other equitable relief to prevent or stop infringement, misappropriation, or unauthorized use of intellectual property; (b) collection of undisputed amounts due; or (c) any other claim that, as a matter of law, may not be subject to pre-dispute arbitration. The pendency of any such court action shall not affect the parties’ obligations under Sections [X.2] through [X.7] with respect to any other Dispute.
[X.9] Survival
The obligations of Sections [X.2] through [X.8] survive termination of this Agreement.
[X.10] Governing Law and Venue
This Agreement and any Dispute shall be governed by the substantive laws of the State of Arizona, without regard to that State’s conflict-of-laws principles. Any Dispute that is not subject to arbitration under this Section, or that escapes the arbitration agreement for any reason, shall be brought exclusively in the state or federal courts located in or nearest to Phoenix, Arizona. Each party consents to the personal jurisdiction and venue of such courts for any such Dispute and waives any objection based on inconvenient forum or lack of personal jurisdiction.
[X.11] Severability
If any provision of this Section [X] is held unenforceable, the unenforceable provision shall be severed and the remaining provisions shall remain in full force and effect, provided that the class-action waiver in Section [X.7] is non-severable from the arbitration agreement as set forth in that Section. Where any provision is held unenforceable in part, the provision shall be enforced to the maximum extent permitted by applicable law.
ADDITIONAL TERMS
Before initiating any formal dispute resolution process under this Agreement, Claimant shall send Company a detailed written notice of the dispute. The notice shall include all of the following: (a) Claimant’s full legal name and current postal address; (b) all email addresses Claimant has used in connection with the Service; (c) the specific date or dates on which Claimant accessed the Service that form the basis of the claim; (d) the specific URL or URLs accessed; (e) the approximate timestamps of the access; (f) the device type, operating system, and browser used; (g) the IP address or addresses used to access the Service, if known to Claimant; (h) a factual basis for Claimant’s standing to bring the claim; (i) a specific description of the conduct alleged and the harm alleged; and (j) the legal theory or theories on which the claim is based. A notice that omits any of the foregoing is procedurally deficient, and the dispute resolution timelines under this Agreement shall not commence until a compliant notice is received.
Within 60 days of Company’s receipt of a compliant notice under the terms listed here https://www.getvisible.com/universal-terms-and-conditions/, the parties shall engage in informal resolution discussions. Such discussions shall include not fewer than two principal-level meetings, each attended by a principal of Claimant and a principal of Company. The parties shall coordinate scheduling in good faith, with Company making available a reasonable slate of dates within the 60-day period and Claimant selecting available dates from the slate. Meetings may be conducted by video conference. Claimant may be accompanied by counsel or an authorized representative. Failure of Claimant to participate in good faith in the required meetings is a material procedural defect, and no arbitration may be commenced unless and until the requirement is satisfied or expressly waived in writing by Company.
To enable good-faith assessment of any claim asserted under this Agreement and to enable the arbitrator to screen for fraud, abuse, or improper purpose, Claimant shall disclose, as part of the initial notice required under the Universal Terms and Conditions, all of the following: (a) the nature of Claimant’s fee arrangement with counsel, including whether the representation is on a contingency, fee-sharing, referral, or hourly basis, the rate or percentage applicable, and the identity of any third party providing funding or financing in connection with the claim; and (b) a list of all claims, demands, formal complaints, or arbitration proceedings filed by Claimant within the 24 months preceding the notice that assert substantively similar legal theories or arise from substantively similar conduct, including the names of respondents and the disposition of each. Failure to provide complete and accurate disclosures under this Section is a material procedural defect.
As a threshold matter and prior to merits adjudication, the arbitrator is authorized to consider, on the arbitrator’s own motion or on motion of a party, whether the claim was brought in good faith or bears indicia of fraud, abuse, or improper purpose. In conducting such review, the arbitrator may consider, without limitation, the disclosures provided pursuant to the Universal Terms and Conditions, the specificity and accuracy of the notice provided pursuant to the Universal Terms and Conditions, the conduct of the parties during the pre-arbitration resolution process required by the Universal Terms and Conditions, the existence of substantively similar claims previously filed by Claimant or Claimant’s counsel, and any other information relevant to the good faith of the claim. If the arbitrator finds, by a preponderance of the evidence, that the claim was brought in bad faith or for improper purpose, the arbitrator may dismiss the claim and may award reasonable fees and costs to Respondent, in each case to the maximum extent permitted by applicable law and the rules of the arbitration provider. This Section is intended to enable fraud screening and shall not be construed to limit Claimant’s ability to assert a good-faith claim on the merits.
Any dispute arising under or relating to this Agreement that is not resolved through the pre-arbitration process described in the Terms and Conditions shall be commenced and conducted exclusively before the provider specified in the Universal Terms and Conditions and under that provider’s then-current consumer arbitration rules. Filings with any other provider shall be deemed procedurally deficient. Venue for any in-person component of the arbitration shall be selected by Respondent, provided that the venue is reasonably convenient to Claimant; video proceedings shall be permitted at the election of either party. Each party shall bear its own attorneys’ fees and costs except as otherwise provided in this Agreement or required by applicable law. To the maximum extent permitted by applicable law and the rules of the selected arbitration provider, Claimant shall pay the costs and fees associated with the arbitration; in any event, the allocation of arbitration fees shall comply with the consumer-protection floors imposed by the selected provider’s consumer rules.
Each party may bring claims against the other only in such party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated, or representative action. The arbitrator may not consolidate more than one party’s claims and may not preside over any form of representative or class proceeding. If any portion of this class-action waiver is found to be unenforceable as to a particular claim, that claim shall proceed in a court of competent jurisdiction (subject to all other terms of this Agreement, including without limitation choice of law and venue under Section [X.X]), and the arbitration agreement shall be null and void as to that claim. The class-action waiver in this Section is non-severable from the arbitration agreement under Section [X.X]; severance of the class waiver from the arbitration agreement is not permitted.
Tracking technologies and consent. The Service uses tracking technologies provided by third parties, including without limitation Google Analytics, the Meta (Facebook) Pixel, [identify any session replay tool in use], [identify any advertising or attribution pixel in use], and similar analytics, advertising, and attribution technologies. By accessing the Service and continuing to use it, you acknowledge and consent to the use of these technologies, including the collection, transmission, and processing of data described in this Privacy Policy. You may control or limit certain optional tracking through standard browser controls, our cookie preferences interface where available, and the opt-out mechanisms made available by the third-party providers we use. Your election to limit optional tracking does not affect your ability to use the Service.
Disputes regarding data handling. Any dispute, claim, or controversy regarding the collection, use, sharing, or processing of data under this Privacy Policy shall be governed by the dispute-resolution provisions, fee provisions, and limitations of liability set forth in the Terms of Service.
Substantiation of data-handling claims. If you believe your data has been collected, used, or shared in violation of this Privacy Policy or applicable law, you must provide us with a complete, unedited copy of the data forming the basis of your claim, together with a detailed written explanation specifying the nature of the alleged violation, the date(s) on which it occurred, and the legal theory or theories on which the claim is based. This requirement is intended to enable a meaningful investigation of any alleged violation and shall not be construed to limit any rights you have under applicable law.
This Agreement and any dispute, claim, or controversy arising under or relating to it shall be governed by the substantive laws of the State of [chosen state – see drafter notes below], without regard to that State’s conflict-of-laws principles. Any dispute that is not subject to arbitration under Section [X.X], or that escapes the arbitration agreement for any reason, shall be brought exclusively in the state or federal courts located in or nearest to [chosen city, chosen state]. Each party consents to the personal jurisdiction and venue of such courts for any such dispute and waives any objection based on inconvenient forum or lack of personal jurisdiction.
